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ELCPartially AllowedELC Case No. 216 of 2017 (formerly Machakos HCCC No. 72 of 2012)· [2017] KEELC 1878 (KLR)

Aggrey Ambani Ngaira v Patrick Kariungi [2017] KEELC 1878 (KLR)

Environment and Land Court
21 September 2017
1,563 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land buyer who paid, took possession, and kept receipts won his plots after 14 years, proving paperwork beats power.

What this practically means

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Executive summary

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The Plaintiff sued for an injunction, specific performance, costs and interest, alleging that by a Sale Agreement dated 26th June 2003 he purchased six plots forming part of Title No. KJD/OLOOLOITIKOSHI/KITENGELA/2922 at Kshs. 50,000 per plot, payable in instalments totalling Kshs. 300,000, with the balance of Kshs. 100,000 due upon availing of the title deed. He paid Kshs. 200,000, took possession and developed the land, but the Defendant never issued the title deed, demanded extra payments, sent threatening letters, changed the property name from Wandaiga Self Help Group to E.W. Properties, and attempted to refund the purchase price by a cheque of Kshs. 200,000 which the Plaintiff returned. The Defendant was served but neither entered appearance nor filed a defence. The court framed four issues: validity of the sale agreement, breach, entitlement to specific performance and injunction, and costs. It found a valid agreement, held that the Defendant breached it and lacked clean hands, and relying on Charles K. Kandie v Mary Kimoi Sang quoting Twalib Hatayan, found that a resulting trust arose in favour of the Plaintiff as the person who advanced the purchase money and took possession. Concluding the Plaintiff proved his case on a balance of probabilities, the court granted a permanent injunction against the Defendant, ordered specific performance of the 26th June 2003 agreement, directed the Defendant to sign completion documents within 60 days failing which the Deputy Registrar would execute them, and awarded costs to the Plaintiff.

Key legal issues

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01

Whether a valid sale agreement existed between the parties

Holding

The court found a valid sale agreement dated 26th June, 2003, signed and witnessed, produced as exhibit P1

Reasoning

The Plaintiff produced the duly signed and witnessed Sale Agreement as exhibit P1 and receipts totaling Kshs. 200,000 issued by Wandaiga Self Help Group confirming payment of the agreed purchase price. The Defendant did not enter appearance or file a defence, so this evidence was uncontroverted. The court was satisfied that the parties contracted for the sale of six plots at Kshs. 50,000 per plot with payment in instalments.

p. 2
02

Whether the Defendant breached the contract

Holding

The Defendant was in breach for failing to issue the title deed and for attempting to vary the terms of the agreement

Reasoning

Despite the Plaintiff paying Kshs. 200,000 and taking possession, the Defendant never issued the title deed, demanded a further Kshs. 100,000 for miscellaneous charges, sent threatening letters, changed the property name to E.W. Properties, and attempted to refund the purchase price by cheque. The court found the Defendant did not come to court with clean hands and had illegally attempted to vary the agreement's terms after sale.

p. 3
03

Whether a resulting trust arose in favour of the Plaintiff

Holding

A resulting trust arose in favour of the Plaintiff because he advanced the purchase money and took possession

Reasoning

Relying on Charles K. Kandie v Mary Kimoi Sang [2017] eKLR quoting Twalib Hatayan, the court applied the rule that a resulting trust automatically arises in favour of the person who advances the purchase money, whether or not the property is registered in his name. Since the Defendant accepted the purchase price and allowed the Plaintiff possession, a resulting trust arose in the Plaintiff's favour.

p. 3
04

Whether the Plaintiff was entitled to specific performance and injunctive relief

Holding

The court granted specific performance and a permanent injunction as the Plaintiff proved his case on a balance of probabilities

Reasoning

With the Defendant having breached the agreement and the Plaintiff's evidence uncontroverted, the court found the Plaintiff proved his case on a balance of probabilities. It entered judgment for the Plaintiff, granting an injunction restraining the Defendant from interfering with the suit plots and ordering specific performance of the 26th June 2003 agreement, with execution of completion documents enforceable by the Deputy Registrar after 60 days.

p. 3

Legal principles established

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  • A resulting trust automatically arises in favour of the person who advances the purchase money, whether or not the property is registered in his name or that of another
  • A registered proprietor who accepts the agreed purchase price and allows the purchaser to take possession of the land creates an element of trust in favour of the purchaser

Court orders

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  1. 1.The Defendant either by himself, his servants, agents, assigns or any other person claiming through him be and is hereby restrained from intimidating, threatening, evicting, selling of the said six plots of Title No. KJD/OLOOLOITIKOSHI/KITENGELA/2922
  2. 2.An order for Specific performance of the Agreement entered into between the Plaintiff and the Defendant dated the 26th June, 2003.
  3. 3.The Defendant to sign the completion documents in respect of the suit land within 60 days from the date hereof, failure of which the Deputy Registrar Kajiado Law Courts will be at liberty to do so.
  4. 4.The Defendant shall bear the costs of this suit

Authorities

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Cases cited (2)

  • Charles K. Kandie v Mary Kimoi Sang
    [2017] eKLR
  • Twalib Hatayan & Anor v. Said Saggar Ahmed Al-Heidy & Others
    [2015] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to land (former Machakos HCCC No. 72 of 2012 transferred to ELC Kajiado)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Aggrey Ambani Ngaira v Patrick Kariungi [2017] KEELC 1878 (KLR)", Case Analysis (2017). ELC Case No. 216 of 2017 (formerly Machakos HCCC No. 72 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1878/eng@2017-09-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.